Upon the following papers read on this ex parte application an order of reference; Affirmation of Regularity in Support of Request for Appointment of Referee sworn to April 21, 2017 and supporting papers; it is,

ORDERED that this application by plaintiff U.S. Bank National Association, as Trustee for Structured Asset Securities Corporation Mortgage Pass-through Certificates, Series 2005-7XS, for an order fixing the defaults of the non-appearing, non-answering defendants and appointing a referee [*2]pursuant to RPAPL § 1321 is denied without prejudice to renew within ninety (90) days of this order, any renewal must include therein a copy of this order; and it is further

ORDERED that any renewed motion shall address the deficiencies identified herein, and plaintiff is cautioned to review the sufficiency of such submission in all regards; and it is further

ORDERED that the matter is restored to the calendar of Part 27 to monitor compliance and scheduled for status conference on September 13, 2017 at 9:30AM; if the renewed motion is filed before that date, no appearance will be necessary.

This is an action to foreclose a mortgage on residential real property known as 22 Forte Avenue, Medford, Suffolk County, New York ("the property") given by Segundo Torres and defendant Maria G. Torres.

Plaintiff commenced this action by filing of a summons, complaint and notice of pendency with the Suffolk County Clerk on September 27, 2016. The action was brought against only one borrower, defendant Maria G. Torres. It appears neither she, nor any resident at the property, appeared or answered. Plaintiff now moves to fix the defaults of the non-appearing, non-answering defendants and to appoint a referee to compute pursuant to RPAPL § 1321.

A review of the complaint and submissions indicates that Segundo Torres, the co-borrower, is identified as "deceased," although the plaintiff's servicer's affidavit of merit identifies him as a defendant (see Exhibit "1"on the motion at ¶8). The action, affirmations of counsel, affidavits and submissions on the motion, treat this proceeding as one against a surviving spouse who held the property as a tenant by the entirety with her deceased husband. Although this may be the case, plaintiff seems to have forgotten its obligation to provide proof in evidentiary form of establish this.

First, Segundo Torres may well be dead, but plaintiff must provide more than a claim to that effect, it must provide proof of his death, such as from a death certificate. A copy of a second loan modification dated June 11, 2014, (attached to both plaintiff's servicers' affidavit of merit [Exhibit "1" on the motion] and as part of Exhibit "B" attached to the complaint [Exhibit"2" on the motion]), contains lines for both borrowers to sign. On the line for Segundo Torres' signature it is marked "Deceased." This is not sufficient proof in evidentiary form to establish his death.

Other submissions by plaintiff further confound the issue of his death. Plaintiff submits proof of mailing to Segundo Torres of both the default notice required by the mortgage (dated March 9, 2015) and the notices required by RPAPL § 1304 (dated March 11, 2016). As the second loan modification of June 11, 2014 should have put plaintiff/servicer on notice of his death, why was he sent these notices? The court could conclude that it was "inadvertence," but these submissions raise questions as to his death in the face of plaintiff's failure to provide admissible evidence of his death.

Second, if he is dead, and plaintiff need not join a personal representative of his estate because the property was held by both he and his wife, Maria G. Torres, as tenants by the entirety, plaintiff must establish that fact. That could be easily established by submission of the deed to the property showing that they held it in that status. Plaintiff has failed to provide that or any other evidentiary proof of their marital status. Absent such proof, an issue is raised as to whether the estate [*3]of Segundo Torres need be joined as a necessary party, or the public administrator appointed to represent such estate.

In the absence of proof of Segundo Torres' death and the status under which both borrowers held the property, plaintiff has not established its entitlement to an order fixing and setting the default of the non-appearing, non-answering defendants and appointing a referee to compute and determine pursuant to RPAPL § 1321.

Plaintiff's motion is denied, with right to resubmit, upon sufficient proof, within ninety (90) days of the date of this order. Plaintiff's proposed order is marked "Not Signed."

This constitutes the Order and decision of the Court.